Togstad v. Vesely, Otto, Miller & Keefe

John Togstad (plaintiff) was severely injured and partially paralyzed after a physician committed medical malpractice while Togstad was hospitalized. Fourteen months later, Togstad’s wife Joan (collectively, plaintiffs), met with attorney Jerre Miller (defendant) of the law firm Vesely, Otto, Miller & Keefe (Vesely) (collectively, defendants). After Joan explained what had happened to John in the hospital, Miller informed her that there was no legal claim to pursue. Joan was not billed for Miller’s time. Miller did not advise Joan to seek alternative legal advice, nor did he inform her of the two-year statute of limitations for medical-malpractice actions. Joan did not pursue the claim, relying on Miller's advice. She consulted another lawyer a year later, but the statute of limitations for a medical-malpractice claim had expired by that time. The Togstads filed a legal-malpractice action against Miller and Vesely. At trial, the Togstads' legal expert testified that, at a minimum, a competent medical-malpractice attorney would request medical authorizations from the client, review hospital records, and consult with an expert in the field before giving an opinion about a potential claim. Experts for the defendants conceded that hospital records should have been reviewed. A jury found for the Togstads and awarded $610,500 in damages to John and $39,000 in damages to Joan. Defendants appealed.